' The above-captioned three appeals arise from the decisions, dated 24th October, 1981, 24th October, 1981 and 29th August, 1981, respectively, passed by the learned Presiding Officer, Punjab Labour Court No, 7, Gujranwala, whereby the grievance petitions of the respondents were accepted and they were directed to be re-instated in service. Muhammad Shafi, respondent, was allowed back benefits also, but in respect of Ausaf Ali it was observed that the question of his entitlement to back benefits would be decided by the appellants on the conclusion of the criminal case and with regard to Malik Ghulam Ahmad respondent, it was directed that the question of his emoluments for the period from 2nd February to 2nd March, 1981 would be determined by the appellant on the conclusion of the investigation by the F.
1. A.
2. As the same legal points are involved in the three appeals and they enamate from the decision of the same Labour Court, they are being disposed of together through this single judgment.
3. In ali the three cases the respondents were suspended for an indefinite period under the WAPDA Employees Efficiency and Discipline Rules. The respondents challenged the orders of their suspension on the ground that they were governed by the Standing Orders Ordinance, 1968, according to which, they could be kept under suspension only for 28 days. On behalf of the appellants it has been contended that the respondents are civil servants that Standing Orders Ordinance, 1968 is not applicable, therefore, the Labour Court has no jurisdiction. So far as the point of civil servant is concerned, it has been argued that under section 17 (I-B) of WAPDA Act, all employees of WAPDA have been declared as civil servants for the purpose of Services Tribunals Act, therefore, the Labour Court has no jurisdiction and only the Services Tribunal has jurisdiction. It has been argued that the exceptions given under the definition of civil servant in the Civil Servants Act are not to be looked into. This could be possible if the term 'civil servant' had been defined by section 17 (1-B) itself, but the said section has not defined the term, therefore, to see what is meant by the term 'civil servant', we have to see the definition given in the Civil Servants Act. In Writ Petition No, 3647 of 1978 the Hon'ble Single Judge of the High Court has observed that section 17 (1-B) has not borrowed the definition of civil servant and has itself defined the term. With great respect I cannot agree with him. Section 17 (1-B) reads as under :- "Service under the Authority is hereby declared to be Service of Pakistan and every person holding a post under the ' Authority, not being a person who is on deputation to the Authority from any province, shall be deemed to be a civil servant for the purposes of the Services Tribunals Act, 1973."
' It is clear from section 17(1-B) that the term "civil servant" has not been defined and only the deputationists have been excluded from the term. So, without looking into the definition of the term given in the Civil Servants Act, we cannot understand what is meant by the term and who are in reality civil servants. If the intention of the Legislature had been that the exceptions given in the definition of civil servant would not apply to WAPDA employees, a provision would have been made in section 17 (1-B) or the term would have been defined differently in the said section. Since it was not done, it is manifest that the intention of the Legislature was that only those WAPDA employees would be deemed to be civil servants, who are not covered by the exceptions given in the definition of civil servant. Now it is to be seen whether the respondents are covered by the exceptions given in the definition of civil servant. So far as Ausaf All is concerned, he is U. D. C. Employed in the Power Wing. According to clause (xix) of Schedule-II appended to section 2(n) of the Workmen's Compensation Act, employees including the ones employed in clerical capacity in the generating transforming or supplying of electrical energy are workmen. Muhammad Shafi is a Ledger Keeper/Bill Clerk. The duties of a Meter Reader apparently are to read the consumption of electrical energy from the meters and to record them in their book. Bills are prepared from such readings and the price of the energy consumed by the consumers is charged from them. The meters are installed in the premises of the consumers who are supplied/ distributed electrical energy. Thus, Muhammad Shafi is employed in the distribution of electrical energy and is covered by clause (xix)
Schedule II of the Workmen's Compensation Act. Malik Ghulam Ahmad Meter Inspector and he is also employed in the distribution of electrical energy and is covered by the Schedule referred to above. Thus, all the three respondents fall within the exception given in the definition of civil servant and they are not civil servants. All the three respondents not having supervisory capacity do not fall within the exception (b) give in the definition of workman in section 2 (xxviii) of the Industrial Relations Ordinance, 1969, therefore, they are workmen. C Ausaf Ali and Muhammad Shafi, respondents, are covered by the definition of workmen given in Standing Orders Ordinance, 1968 also, because their duties are clerical. So far as Ghulam Ahmad is concerned, his work is of technical nature since he is a Meter Inspector. He inspects the meters to find out whether they are without any fault, Her, therefore, does manual skilled work and he too is covered by the definition of workman given in section 2(i) of the Standing Orders Ordinance, 1968.
4. The other point is whether Standing Orders Ordinance, 1968 is applicable or not. I have already decided in many cases that WAPDA is not working by or under the authority of the Government and its rules are not statutory rules. The learned counsel for the appellants in support of their arguments that WAPDA is working under the authority of the Government and that its rules had been framed under section 18 of the WAPDA Act, have relied upon sections 18, 3 (2), 4, 5, 6, 8(1), 8 (3), 8 (4), 9 (2), 11(1) to (5), 13 (g), 15, 16 (2), 21, 22 (2), 27 and 28 of WAPDA Act, 1958. Section 3 (2) reads as under :- "The Authority shall be a body corporate, shall be entitled to acquire and hold property, shall have perpetual succession and a common seal and shall by the said name sue and be sued."
' Obviously by being a body corporate and being entitled to acquire property and having perpetual succession and entitled to sue and to be sued in the said name, WAPDA cannot be said to be working by or under the authority of the Government. But rather section 3 (2) conversely shows that WAPDA is an independent body and can acquire any property and can sue in its own name without taking any authority from the Government. Section 4 shows only this much that the Chairman and the members would be appointed by the Government and the Government can extend the period after the expiry of the term for which they were initially appointed. Section 5 deals with the salary and service conditions of the Chairman and the members which were to be prescribed by the Government, but the duties are to be performed by them as assigned by the Act or by the Regulations framed by the Authority under section 6, the Government can remove the Chairman or any member by means of a notification, subject to the conditions enumerated in clauses (a) to (d) of the said section. It is clear from sections 4 and 5 that the appointment and removal of the Chairman and members can be made by the Government, but with regard to their duties, the Government has no connection and the duties are to be assigned under the WAPDA Act or the Regulations framed by WAPDA. So far as the working of WAPDA is concerned, it is independent and has not to seek any authority from the Government. According to section 8 (1), comprehensive plan for development and utilization of water and power resources of Pakistan on a unified and multi-purpose basis is to be prepared by WAPDA for the approval of the Government.
The scheme is to be prepared by WAPDA under section 8(2), which, according to subsection (3), is to be submitted to the Government for approval. The Government has discretion under clause (4) of section 8 to sanction or refuse to sanction the scheme, or to return it for further details or information. If the estimated costs of a scheme exceed the amount prescribed by the Government, the scheme is to be submitted to the Government and the Government has to pass the orders as contemplated by section 8 (4). Under section 9 (2) the Authority can with the approval of the Government, undertake the execution of any scheme, or exercise technical supervision and administrative and financial control over the execution of the scheme framed or sponsored by any agency in respect of the matters enumerated in section 8 (2). It is clear that to start with the scheme the Government interferes but after the scheme has been passed. WAPDA is independent to work on that scheme and, therefore, the Government has nothing to do with it. If any scheme is sponsored by the Provincial Government, or any agency under the control of the Provincial Government, WAPDA can exercise technical supervision and administrative and financial control over the execution of such a scheme on terms and conditions agreed upon, on one hand, by the Authority and, on the other, by the Provincial Government or agency in consultation with the Provincial Government. This provision is made in section 9-A. This provision appears to have been made so that the Government may have power to interfere with the execution of the scheme which has been sponsored by it. But the other schemes where the Government has not made any investment only initial approval of the Government is necessary, but, thereafter, the Government neither can control, nor interfere with the working of the scheme and WAPDA is independent.
According to section 11(1), the Authority has exclusive control over underground water resources of any region in the Province and over the operation of all power houses and grids including such ancillary works, as may be considered necessary for their proper operation. WAPDA can make recommendations to the Government under section 11 (1) (0 for prescribing standard for the operation and maintenance of all irrigation works and maintenance of power houses and grids. It can also make recommendations to the Government for promoting simplification of the methods of charge for supply of electricity and standardisation of the system of supply. Merely by making recommendations to the Government to prescribe standards for the operation and maintenance of irrigation works, WAPDA cannot come under the authority of Government. All irrigation works being Government property, therefore, only the Government can prescribe standards for their operation and maintenance. Since electrical energy is produced with the help of some irrigation works, therefore, recommendations are to be made by WAPDq to the Government for the proper maintenance of power houses and grids run with the help of said irrigation works. Since all waters existing in the country belong to the Government, therefore, while putting those works at the disposal of WAPDA, provision was made for making recommendations to the Government for their maintenance and working, but it cannot be assumed that the WAPDA comes under the authority of the Government by making such recommendations. Likewise, by making recommendations to the Government for prompting simplification of methods, charge for supply of electricity and standardization of the system of supply. WAPDA does not in any manner come under the Government. Clause (4) provides that with the prior approval of the Government and on payment of reasonable compensation, WAPDA may declare any power generating station belonging to a licensee to be a controlled station and exercise power to regulate production from that station.
Since WAPDA was authorised by the Act to declare any power generating station to be a controlled station and to regulate the production from that station, therefore, taking of approval from the Government was made necessary. Only the Government can declare any private or licensed power house to be controlled station and since such a power was given by the Act to WAPDA, the provision of taking approval from the Government was made. For the same reason further provisions enumerated in sub-clauses (a) to (c) of clause (5) have been made for fixing the rates of the energy supplied to the grids or to any power generated at the station by WAPDA. The Jicensees or owner of the controlled station being arrayed with WAPDA, therefore, it was provided that the rates would be determined by the Government. Clause (g) of section 13 makes a provision that WAPDA may seek advice and assistance in the preparation or execution of a scheme from any local body or agency of the Government and WAPDA would be liable to pay costs of the advice and assistance if the local body or the agency incurred any expenditure in giving advice and assistance. I am at a loss to understand how the Government by extending a helping hand of giving advice or assistance brings WAPDA under its authority. By no stretch of imagination it can be said that by taking assistance or advice from the Government, the WAPDA comes under the authority of the Government. Section 15 provides only this much that if the scheme framed and sanctioned under the WAPDA Act is amended or modified by WAPDA, previous sanction of the Government would be obtained, provided a material change is brought about in the scheme. I have already mentioned above that at the time WAPDA came into existence and had to start functioning the Government interfered but later on for all purposes WAPDA was independent, except in cases where the Government sponsored any scheme or made any advances or grants.
Subsection (2) of section 16 gives powers to Government to direct the Authority to hand over any scheme other than a power scheme or the power part of a multi-purpose scheme carried on by it to any agency of the Government, or a local body. Firstly, since no power scheme or power part of a multi-purpose scheme can be handed over by WAPDA to any local body, such a provision has no adverse effect upon WAPDA so far as its independent working is concerned with regard to the production, consumption, sale and sale of electrical energy and secondly, the Authority is entitled to receive credit from the local body to whom the scheme is transferred to the extent of audited expenditure incurred by it. Section 21 makes the Authority liable to submit to the Government after the end of every financial year but before 1st day of September, next following report on the conduct of its affairs for that year. By the submission of the reports referred to in section 21 WAPDA cannot in any manner come under the direct authority of the Government. Every person running the business has to submit income-tax returns to the Income-tax Department for the assessment of income-tax but it does not mean that the businessman can be said to be doing business under the authority of the Income-tax Department. If the Government wants to watch the working of WAPDA, it does not mean that WAPDA is working by or under the authority of the Government, subsection (2) of section 22 deals with the funds of the authority and funds include grants made by the Government, loans obtained from the Government, grants by the local bodies as required by the Government, sale-proceeds of bonds issued under the authority of the Government, loans obtained by the Authority with a special or general sanction of the Government, foreign aid and loans obtained from the International Bank of Reconstruction and Development or otherwise with the sanction of and on such terms and conditions, as may be approved by the Government. If the Government has made any grant or advance to WAPDA, it would not mean that WAPDA is under the direct authority of the Government. But rather the reason for which the Government wishes to have some kind of control over WAPDA is due to the reason that the Government has made grants and loans to WAPDA. By having control over the working of WAPDA, the latter cannot come under the direct authority of the Government. Rather if WAPDA had been functioning by or under the direct authority of the Government, there would have been no need of making provision in the WAPDA Act for interference by the Government and for the Government control. Section 27 makes a provision for the submission of annual statements of accounts to the Government in respect of receipts and expenditure for the next financial year. Section 28 makes a provision that accounts of the Authority shall be audited every year by the Auditor-General of Pakistan in the manner prescribed by the Government. It also provides that the Authority shall carry out any direction issued by the Government for the rectification of an audit objection. This provision rather makes it further clear that WAPDA is not functioning under the authority of the Government, otherwise there was no necessity of making a provision that the Auditor-General would inspect the accounts of the Authority. The Audit Department without any special direction from the Government is duty bound to audit every department of the Government, which deals with income and expenditure and the Department under inspection has to rectify all audit objections made by the Auditors. In nutshell the provision made in the sections referred to by the learned counsel for the appellant rather conversely shows that WAPDA is neither being run by the Government, nor under the authority of the Government and is independent. Since WAPDA is working independently for the public interest, the Government is duty bound to watch its working independently. If the working of WAPDA is not watched by the Government and if it fails, the public will be put to great in convenience, inasmuch as all other power houses where electrical energy was generated having been stopped and electrical energy is being supplied by grids of WAPDA, only so much so that even water is being supplied to the big cities by the water works propelled by the electrical energy. The other condition given in proviso to section 1 (4) (c) of West Pakistan Industrial and Commercial Employme (Standing Orders) Ordinance, 1968 also does not stand fulfilled. The procedure laid down by WAPDA under section 18 of WAPDA Act does not amount to statutory rules. The mere fact that section 18 empowers the Authority to lay down procedure for appointment and for laying down the terms and conditions of service is not sufficient to give the character of statutory rules to the said procedure.
This is not worthy that section 18 does not empower the Authority to frame Efficiency and Discipline Rules. It empowers the authority only to prescribe procedure for appointment and for laying down the terms and conditions of service of its officers and servants. This section further says that the Authority shall be competent to take disciplinary action against its officers and servants. In the terms and conditions of service it may be provided how the disciplinary action could be taken but if those terms and conditions are against the provisions of any law which governs the employees of WAPDA, then terms and conditions would not be applicable and action can be taken according to the legal provisions. Whatever the case may be, this is clear that section 18 has not empowered the Authority to frame Efficiency and Discipline Rules. Section 29 empowers the authority to frame such regulations as it may consider necessary and expedient with the approval of the Government.
It is not clear from section 29 what kind of regulations can be made and it has been left at the discretion of the Authority to frame regulations as it may consider necessary and expedient. Again section 29 does not say that the regulations will be notified in the official Gazette. It also does not say that disciplinary action would be taken according to the regulations framed by the Authority with the approval of the Government. After reading sections 18 and 29 it appears that the intention of the Legislature is not that WAPDA should have its own Efficiency and Discipline Rules for taking action against its employees. If the intention had been that the efficiency and discipline rules be framed by WAPDA, such a provision would have been made in section 18 or in section 29. Needless to say that terms and conditions of service cannot be called statutory rules. Since section 18 does not authorise the Authority to frame Efficiency and Discipline Rules, West Pakistan WAPDA Employees Efficiency and Discipline Rules, 1978 cannot be said to have been framed under the said sections. Rules of 1978 cannot be said to be the regulations framed under section 29, because the regulations can be framed with the approval of the Government, but the rules of 1978 do not show that the approval of Government had been obtained. The opening paragraph of the rules clearly shows that there is no mention of the fact that the approval of the Government was taken. The paragraph reads as under :- "In exercise of the powers conferred by section 18 of the West Pakistan Water and Power Development Authority Act, 1958 (West Pakistan Act No, XXXI of 1958) the West Pakistan Water and Power Development Authority is pleased to make the following rules namely."
' As the matter of fact since these rules have not been framed under section 29, therefore, no question of the approval of the Government arises. Whatever, the case may be, the Efficiency and Discipline Rules of 1978 neither can be said to have been framed under section 18 for the said section does not authorise for the framing of such rules, nor they can be said to be regulations framed under section 29, since the approval of the Government was not obtained. These rules, therefore, have no legal effect. The result is that both the conditions laid down in proviso to section 1
(4) (n) of the Standing Orders Ordinance, 1968 do not stand fulfilled and thus WAPDA is not exempted from the application of the said Ordinance.
6. Since Standing Orders Ordinance, 1968 is applicable to WAPDA, the respondents could not be kept under suspension for more than 28 days and were rightly ordered to be reinstated in service by the learned lower Court. There is no force in the appeals which are dismissed.